Supreme Court Divided Over Bid to Allow Emergency Abortions

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(Bloomberg) -- US Supreme Court justices clashed over the limits on state power to ban abortion when a woman’s health is in jeopardy, suggesting a deep divide over a Biden administration bid to protect access in medical emergencies.

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Hearing arguments Wednesday on Idaho’s near-total abortion ban, the court’s most conservative justices questioned the administration’s reading of a federal statute that requires hospitals to stabilize patients who arrive in need of emergency treatment. The liberal justices indicated they agreed with the Justice Department that the law requires hospitals to provide abortions when necessary to prevent major health consequences.

“It says that you don’t have to wait until the person is on the verge of death,” Justice Elena Kagan said. “If the woman is going to lose her reproductive organs, that’s enough to trigger this duty on the part of the hospital to stabilize the patient.”

The case marks the first time the court has reviewed a state abortion ban since overturning Roe v. Wade in 2022. Idaho is one of a handful of states that now bans all abortions unless the mother’s life is in danger.

The high court is separately considering a lawsuit that would restrict access to a widely used abortion pill. The court is scheduled to rule in both cases by late June, potentially fueling the debate in the lead-up to the November election.

The two justices most likely to determine the outcome of the case – Chief Justice John Roberts and Justice Amy Coney Barrett – asked questions of both sides and didn’t clearly indicate which way they were leaning.

Barrett said at one point she was “kind of shocked” when Joshua Turner, the lawyer for the state, couldn’t clearly answer whether abortions would be permitted under Idaho law in certain circumstances.

‘Obvious Concern’

Roberts suggested he was worried about the process for determining whether doctors complied with the law in a given case.

“Is the doctor subjected to review by a medical authority?” he asked. “Exactly how is that evaluated? Because it’s an obvious concern.”

At issue is the reach of the Emergency Medical Treatment and Labor Act, known as EMTALA, a 1986 law designed to prevent hospital emergency rooms from refusing to care for people who come in without insurance or a means to pay.

Justice Samuel Alito was skeptical that a law passed with the support of Republican President Ronald Reagan could be read to bolster abortion rights. Alito pointed to a provision in the law that refers to the “unborn child.”

“Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions?” he asked US Solicitor General Elizabeth Prelogar, the Biden administration’s top courtroom lawyer.

Prelogar said the provision was designed to address “well-publicized cases where women were experiencing conditions, their own health and life were not in danger, but the fetus was in grave distress and hospitals weren’t treating them.”

Turner, the Idaho lawyer, told the justices that “nothing in EMTALA requires doctors to ignore the scope of their license and offer medical treatments that violate state law.”

Full Enforcement

The administration sued just before the Idaho ban took effect in August 2022, and a federal trial judge said doctors could continue performing abortions in health emergencies while the legal fight goes forward.

But the Supreme Court lifted the trial court order in January, letting Idaho begin fully enforcing its ban, which carries criminal penalties of as long as five years in prison. The high court’s eventual ruling will affect other states with sweeping bans, including Texas, which is waging a similar legal fight against the administration.

Opponents of the Idaho law include doctors who say women with no chance of delivering a healthy baby are being forced to wait days, or be transported out of state, to address a serious health risk. Those critics also say the law has led to an exodus of obstetricians from the state.

The cases are Moyle v. United States, 23-726, and Idaho v. United States, 23-727.

(Updates with excerpt from arguments starting in third paragraph.)

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